Pompidou and Pompidou

[2008] FamCA 734

FAMILY COURT OF AUSTRALIA

POMPIDOU & POMPIDOU [2008] FamCA 734

FAMILY LAW  -  PROCEDURE  -  substituted service of enforcement application

Family Law Act 1975 (Cth)

HUSBAND: Mr Pompidou

WIFE: Ms Pompidou

FILE NUMBER: MLF 2509 of 2008

DATE DELIVERED: 13 August 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 13 August, 2008

REPRESENTATION

COUNSEL FOR THE WIFE: Ms B. A. Tulloch

SOLICITOR FOR THE WIFE: J.A. Middlemis

THE HUSBAND: No appearance

Orders

1. That the hearing of the application for enforcement filed by the wife on 10 June, 2008 (“the enforcement application”) be adjourned to 10:00 am. on 10 September, 2008 in the judicial duty list. 

2. That if the husband fails to appear on the adjourned date, and subject to any decision to the contrary by the judge before whom the enforcement application is listed, the enforcement application proceed that day, in his absence. 

3. That upon compliance with the provisions of paragraph (4) hereof, all requirements for service of the enforcement application on the husband be dispensed with. 

4. That within seven days hereof the wife send to the husband, by ordinary prepaid post, addressed to :

   (a)N Street, D;  and

   (b)care of Michael Maplestone, Solicitor, with a letter requesting Mr. Maplestone to forward the documents to the last known address of the husband;

   the following documents :

   (c)a sealed copy of this order;

   (d)the enforcement application;

   (e)affidavits of the wife filed 10 June, 2008 and 12 August, 2008;

   (f)application in a case filed by the wife on 12 August, 2008;

   (g)Family Law Rule 2.03 brochures;  and

   (h)a letter to the husband informing him that if he does not appear on the adjourned date the enforcement application may be determined in his absence.

5. That the wife’s costs of the applications filed 10 June, 2008 and 12 August, 2008 be reserved for determination at the hearing of the enforcement application.

6. That the application filed by the wife on 12 August, 2008 be otherwise dismissed.

7. That the reasons for judgment this day be transcribed and copies made available to the parties.

8. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment under the pseudonym Pompidou & Pompidou is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2509 of 2008

MR POMPIDOU

Husband

And

MS POMPIDOU

Wife

REASONS FOR JUDGMENT

1. Before the court is an application filed by the wife on 10 June, 2008 in which she seeks enforcement of an order made by me on 19 December, 2007, providing for the husband to pay the wife’s costs of earlier litigation. The earlier litigation involved an application brought by the wife to set aside final property orders, made by consent on 7 July, 2004, pursuant to the provisions of s.79A of the Family Law Act 1975. The wife was successful in that application and the orders were varied. She sought her costs, resulting in the order of 19 November, 2007.

2. Yesterday the wife filed a further application, seeking substituted service of her enforcement application.  That application had an initial hearing date of 9 July, 2008 which was extended as the wife was unable to serve the husband.  In support of the application for substituted service she has sworn a detailed affidavit in which she sets out attempts to serve the husband at the place at which there is good reason to believe he lives (N Street, D) and through a solicitor (Mr. Maplestone) who acted for the husband earlier this year and from whom correspondence was received by the wife as recently as May 2008.

3. Mr. Maplestone may not now act for the husband.  I do not find that he has ever acted for him in these financial proceedings, but I am satisfied he acted for him for a period in relation to children’s issues. 

4. The evidence raises an inference that the husband is evading service.  Reference has been made in submissions to earlier orders for substituted service, made in the proceedings which concluded with the consent orders being varied on 7 July, 2004.  I do not place weight on that matter in reaching this decision.

5. The evidence satisfies me that it is more probable than not that the husband lives or spends considerable time at N Street, D.  The parties’ children say they spend time with him there and that is consistent with other evidence.  I will order that the husband be served by ordinary pre-paid post addressed to that address and that the documents also be sent to Mr. Maplestone, with a request he forward them to the last known address he has for the husband. 

6. Service in accordance with that order will be deemed adequate service.  The application filed 12 August, 2008 will be otherwise dismissed. 

7. In her enforcement application the wife seeks an order for the sale of a property in the event the husband does not pay her assessed costs.  I do not propose to compel the husband to attend on the adjourned date.  He must understand that if he does not do so, the enforcement application will probably be heard in his absence.  That will be a matter for the judicial officer before whom it is listed.  If the husband does not join issue with the application, there is no reason why the case should not proceed on the next date, in his absence. 

8. I will reserve the question of the wife’s costs of the applications filed 10 June, 2008 and 12 August, 2008 until determination of the enforcement application.

I certify that the preceding
8 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2008.

…………………………………………
Associate.